In a Memorandum & Order in Students For Fair Admissions (SFFA) v. Harvard, United States District Judge Allison D. Burroughs has denied the cross-motions for summary judgment in this closely-watched case challenging affirmative action admissions at Harvard as discriminating against Asian-American applicants.

Although Harvard is a private university and the claim is under Title VI of the 1964 Civil Rights Act, 42 U.S.C. §2000d et. seq., the applicable precedent involves the constitutionality of affirmative action in higher education under the Equal Protection Clause. As Judge Burroughs explained in footnote 16 of the opinion:

[Defendant] Harvard notes that the Supreme Court has only addressed race-conscious admissions policies of public universities, and suggests that there are “good reasons to think that” the applicable Supreme Court precedent does not apply in the same manner to private universities like Harvard that are subject to Title VI. Because Harvard does not identify any specific reasons for distinguishing public universities from federally-funded private universities, or explain how the analytical framework would differ for private versus public litigants, the Court at this stage places Harvard on equal footing with a public university in applying Grutter [ v. Bollinger (2003)] and its progeny. See Grutter, 539 U.S. at 343 (“[T]he Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI . . . also fail.”); id. (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment” (citing Regents of Univ. of California v. Bakke, 438 U.S. 265, 287 (1978))).

After detailing the Harvard admissions policy as implemented and concluding that the case is not moot, Judge Burroughs considered the four claims by SFFA: intentional discrimination, racial balancing, race as a plus factor, and race-neutral alternatives.

First, Judge Burroughs concluded that the dueling reports by experts regarding the presence or absence of a negative effect of being Asian-American on the likelihood of admission essentially precluded summary judgment. The experts' contradictory conclusions derived in part from their "divergent modeling choices" and the "credibility of the expert witnesses in making these critical modeling and analytical choices is best evaluated at the upcoming bench trial." Moreover, "stray" positive and negative remarks were also best evaluated at trial.

Second, Judge Burroughs states that while "racial balancing" has been deemed unconstitutional, the parties present "plausible but conflicting interpretations" of Harvard's use of its own admissions data from previous years. Again, the matter of credibility would be paramount.

Third, SFFA argued that Harvard was not specifically employing the notion of "critical mass" and Harvard was not considering race as a mere "plus factor." Judge Burroughs concludes that there is no requirement of "critical mass" to satisfy strict scrutiny — the use of "critical mass" was simply part of the admissions policies of the universities in Michigan (in Grutter) and Texas (in Fisher). However, as to the use of race as a plus factor, Judge Burroughs noted that under Fisher II (and Fisher I), the university is entitled to no deference in whether its means chosen is narrowly tailored and thus again the issue of credibility and fact were best determined at trial.

Fourth and finally, SFFA's argument that Harvard has failed to consider race-neutral alternatives, there was a factual dispute regarding the timing of Harvard's reconsideration of such alternatives which coincided with the imminence of the lawsuit in 2014. SFFA's expert argued that Harvard "can easily achieve diversity by increasing socioeconomic preferences; increasing financial aid; reducing or eliminating preferences for legacies, donors, and relatives of faculty and staff; adopting policies using geographic diversity; increasing recruitment efforts; increasing community college transfers; and/or eliminating early action." The Harvard Committee reached the opposite conclusion.

In short, the litigation seems set to proceed to trial perhaps with a path to the United States Supreme Court.

Judge Emmet G. Sullivan (D.D.C.) ruled today in Blumenthal v. Trump that members of Congress have standing to sue President Trump for violations of the Foreign Emoluments Clause. At the same time, Judge Sullivan declined to rule on the President's other three arguments for dismissal--that the plaintiffs lack a cause of action, that they've failed to state a claim (because the President's business interests aren't "emoluments" under the Clause), and that injunctive relief sought is unconstitutional. Thus, the ruling is a set-back for the President, but Judge Sullivan may yet end up dismissing the case on other grounds.

We posted here on the earlier district court ruling that another Emoluments case, brought by Maryland and D.C., can move forward.

The Congressmembers' case alleges that President Trump's overseas business holdings and properties generate income and benefits for the President, without the consent of Congress, in violation of the Foreign Emoluments Clause. That Clause says:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The 201 plaintiffs seek declaratory and injunctive relief. They claimed that they were harmed (for standing purposes) because the President, by failing to seek congressional consent, denied each of them a "vote on the record about whether to approve his acceptance of a prohibited foreign emolument."

The court agreed:

[E]ach time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury--the deprivation of the right to vote on whether to consent to the President's acceptance of the prohibited foreign emolument--before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.

The court went on to say that standing didn't violate the separation of powers. The court held that the plaintiffs lacked an alternative legislative remedy, and that the case was appropriate for judicial review.

The lawsuit relates to the defendants' failure to produce documents, not the more recent sexual assault and misconduct allegations against Judge Kavanaugh. The government will surely file a motion to dismiss based on the political question doctrine (itself a separation-of-powers matter), among others. The outcome of the case (and the confirmation process more generally) will set the standards for document release and Senate advice-and-consent for future judicial nominations, by Republicans and Democrats alike.

Here's the gist:

This case arises from the direct and substantial interference by President Trump and other agents of the executive branch in the ability of the Senate to examine the record and evaluate the fitness of Judge Brett Kavanaugh, the President's nominee for a lifetime appointment as an Associate Justice of the Supreme Court of the United States. President Trump and agents of the executive branch interfered in the ability of Senator Merkley and the Senate to provide advice and consent by, inter alia, imposing a broad and unprecedented blockade on the Senate's and public's access to reams of key documents that directly bear on Judge Kavanaugh's views, experience, and character. This improper process regarding the production of relevant documents prevents Senator Merkley and his colleagues from properly exercising their constitutional obligation to provide advice and consent on the qualifications of the nominee and deprives them of the ability to fully assess the nominee's fitness to assume the position of an Associate Justice of the United States Supreme Court.

***

The President and officers of the executive branch have interfered in the Senate's advice and consent responsibility in three critical ways: encouraging the Senate Majority to not request documents related to Kavanaugh's time while serving as Staff Secretary to George W. Bush; blocking access to an extensive set of documents related to the nominee's views and actions while serving in President George W. Bush's Office of White House Counsel; and blocking full access by all Senators and the public to documents delivered to the Senate Judiciary Committee but marked "Committee Confidential."

(b) Defendants McConnell, Grassley, Adams, and Stenger not hold or permit a vote on the nominee's confirmation, or otherwise act to advance the confirmation process, until the National Archives releases his records, including the records requested by Senator Grassley regarding the nominee's work at the Office of White House Counsel, and there is sufficient time for the U.S. Senate to review the documents and conduct a careful review of the newly released documents;

(c) National Archives expedite the production of the documents to the earliest date practical;

(d) Defendant Burck cease and desist from usurping the traditional role of the neutral professionals at the National Archives.

In its divided opinion in Brakebill v. Jaeger, an Eighth Circuit panel has stayed a district judge's injunction against enforcement of a North Dakota statute requiring a valid form of identification that includes the prospective voter's current residential street address in North Dakota. The district court had found that this provision violated the Equal Protection Clause and ordered that the state accept either a "current residential street address or a current mailing address (P.O. Box or other address) in North Dakota.” (The district court had also found that other tribal identification rules violated equal protection, but the state did not appeal those portions of the injunction.)

The majority of the Eighth Circuit reasoned that this residential street address requirement was neutral and as applied to the six named plaintiffs, did not impose an excessive burden. In its brief opinion, the majority concluded that North Dakota was not only likely to succeed on the merits, but would also be irreparably harmed without a stay, in large part because North Dakota does not have a voter registration requirement. "

If the Secretary must accept forms of identification that list only a mailing address, such as a post office box, then voters could cast a ballot in the wrong precinct and dilute the votes of those who reside in the precinct. Enough wrong-precinct voters could even affect the outcome of a local election. The dissent’s suggestion that the State protect itself from this harm by using maps or affidavits would require North Dakota to reinstate self-certification methods that the legislature already deemed insufficiently reliable when it adopted the residential street address requirement. The inability to require proof of a residential street address in North Dakota also opens the possibility of fraud by voters who have obtained a North Dakota form of identification but reside in another State while maintaining a mailing address in North Dakota to vote. The dissent deems this impossible, because only a resident of the State is supposed to receive a form of identification, but the injunction prevents election officials from verifying that a voter with such an identification has a current residential street address in the State. Even if the State can prosecute fraudulent voters after the fact, it would be irreparably harmed by allowing them to vote in the election.

Dissenting, Judge Jane Kelly argued that it was important that identification cards required a fee, and though state law required the Department of Transportation to provide free non-driver identification cards, the state did not do so in practice (and its website actually stated that a fee was necessary). Instead of an injury to North Dakota, Judge Kelly contended that the injury would be to prospective voters, like the six Native American plaintiffs, who would be potentially denied the right to vote.

The student chapter of the American Constitution Society at Barry University School of Law and Texas A&M University School of Law are hosting the Fourth Annual Constitutional Law Scholars Forum at the Dwayne O. Andreas School of Law Campus, 6441 East Colonial Drive, Orlando, FL 32807.

The Constitutional Law Scholars Forum invites scholarly proposals on constitutional law at any stage of pre-publication development, from the germination of an idea to the editing stage. The Forum provides an opportunity for scholars and educators to vet their work-in-progress in a welcoming, supportive environment. (The Forum is not accepting proposals from students at this time.)

The deadline to submit proposals is December 1, 2018.

There are no conference fees and meals are provided.

Abstract Submissions:

Email proposals to Professor Eang Ngov, engov@barry.edu, with “Constitutional Law Scholars Forum” in the subject line. Submissions should include a short abstract (300 words maximum) and biography (150 words maximum).

The Ninth Circuit ruled in Fikre v. FBI that the plaintiff's due process challenges to his inclusion on the government's no-fly list were not moot, even though the government took him off the list during the litigation. The ruling means that the plaintiff's case challenging his inclusion on the no-fly list can move forward.

The case arose from Yonas Fikre's inclusion on the no-fly list and his several and significant resulting harms. Fikre alleged that his inclusion violated substantive and procedural due process, and he sought declaratory and injunctive relief. During the litigation, the government removed Fikre from the list, however, and moved to dismiss the case as moot. The district court granted the motion.

The Ninth Circuit reversed. The court ruled that Fikre's case came under the voluntary cessation exception to mootness--that signs pointed to the government opportunistically removing him, and that the government could reinstate him at any time. The court explained:

To begin, the FBI's decision to restore Fikre's flying privileges is an individualized determination untethered to any explanation or change in policy, much less an abiding change in policy. . . .

Moreover, the government has no assured Fikre that he will not be banned from flying for the same reasons that prompted the government to add him to the list in the first place, nor has it verified the implementation of procedural safeguards conditioning its ability to revise Fikre's status on the receipt of new information. . . .

Finally . . . we note that Fikre's removal from the No Fly List does not "completely and irrevocably eradicate[] the effects of the alleged violation[s]."

The ruling sends the case back to the district court for further proceedings.

Over at "First Amendment News" (FAN) by Ron Collins, a symposium of 15 women scholars on the current state of the First Amendment. In her forward, Kellye Testy comments on the "relative lack of women’s visibility in First Amendment jurisprudence," by noting that what “counts” as First Amendment scholarship is subject to a sexist lens and that protecting "free speech" can be a male preoccupation given that "men who have had “free speech” want to keep speaking," but "women’s speech has been restrained, both as a matter of formal law and of social practices, including violence."

A number of the contributions focus on free speech in the "Trump-era" or in the "internet-era" or both, including my own.

A bit of text about each of the amendments, but the treasure is the linked songs. For example, the Third Amendment features Palehound and They Might be Giants. Not to be missed is the Fifteenth Amendment

Not to be missed are the Fifteenth Amendment pieces by Aisha Burns and Nnamdi Ogbonnaya. But the whole project is worth a listen - and one can play through the list.

The UNLV William S. Boyd School of Law is calling for presenters and commenters for this exciting symposium, Dignity, Tradition, & Constitutional Due Process: Competing Judicial Paradigms, March 14-15, 2019, in Las Vegas.

The Court's determination regarding which paradigm to apply [a "deeply rooted" historical paradigm, or a "dignity" paradigm] depends, of course, on which receives at least five affirmative votes in any given appeal. Until his recent retirement, Justice Anthony Kennedy usually was the deciding vote. The probable confirmation of Hon. Brett Kavanaugh to Kennedy's seat may portend severely limited use of the dignity paradigm, if not its effective demise.

Our symposium . . . explores which of these two seemingly irreconcilable standards is correct, or whether there are one or more alternative approaches the courts should use.

In its opinion in Nwanguma v. Trump, a panel of the Sixth Circuit ruled that the complaint against Donald Trump and his campaign for damages based on "inciting to riot" during a Kentucky event should be dismissed. Recall that the district judge denied Trump's motion to dismiss the complaint's count of incitement to riot based on events during a campaign event in Louisville, Kentucky on March 1, 2016. The complaint alleged that the candidate told the crowd “Get ’em out of here,” when the plaintiffs were "peacefully protesting" at a campaign rally, and as a result of the candidate's encouragement, three individual defendants pushed, shoved, and struck the three plaintiffs.

The Sixth Circuit's opinion, authored by Judge David McKeague, agreed with the district judge that the relevant precedents were Brandenberg v. Ohio (1969), Hess v. Indiana (1973), and the Sixth Circuit's en banc decision in Bible Believers v. Wayne County (2015). However, the Sixth Circuit criticized the district judge's analysis on some of the elements of the Kentucky incitement to riot statute as "decidedly thin." For Judge McKeague, seemingly the most important fact of the Trump speech was that Trump's repeated statement “Get ’em out of here" was followed by "don't hurt 'em." Thus, "any implication of incitement to riotous violence is explicitly negated": "If words have meaning, the admonition 'don't hurt 'em' cannot reasonably be construed as an urging to "hurt 'em.'"

After considering the elements of the Kentucky incitement to riot statute, Judge McKeague then considers the First Amendment protection that inheres in the definition of incitement to riot. Yet on both issues, Trump's "don't hurt 'em" statement figures prominently. Again, while in "the ears of some supporters, Trump's words may have had a tendency to elicit a physical response" they are undercut by the words "don't hurt 'em."

Judge Helene White's short concurring opinion argues that the "majority opinion elides salient details of Trump's speech that make this a closer case" for her than for the majority opinion which "overemphasizes the legal significance of the 'don't hurt 'em' statement." However, Judge White concurs because she concludes that the allegations do not meet the Kentucky statute's definition, and therefore the court should not have reached the First Amendment issue.

In its brief opinion in Free and Fair Election Fund v. Missouri Ethics Commission, a panel of the Eighth Circuit agreed with the district judge that Mo. Const. Art. VIII §23.3 violates the First Amendment.

The Missouri constitutional provision, approved by voters in November 2016, prohibited political action committees (PACs) from receiving contributions from other political action committees. The PAC Free and Fair Election Fund quickly challenged the constitutional amendment contending that the inter-PAC transfer ban violated the First Amendment. The district judge and appellate panel agreed, reasoning that restricting the recipients to whom a PAC can donate "limits the donor-PAC’s speech and associational rights under the First Amendment," and thus "the challenged law must advance a sufficiently important state interest and employ means closely drawn to avoid unnecessary abridgment of First Amendment freedoms."

There is only one legitimate state interest in restricting campaign finances: “preventing corruption or the appearance of corruption.” This interest is limited to preventing “only a specific type of corruption—‘quid pro quo’ corruption” or its appearance. A large donation that is not made “in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to . . . quid pro quo corruption.” Similarly, the general risk that a donor, through large donations, will “garner influence over or access to elected officials or political parties,” either in fact or in appearance, is insufficient to create quid pro quo corruption. Instead, “the risk of quid pro quo corruption is generally applicable only to the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder.”

[citations omitted]. The Eighth Circuit held that the inter-PAC transfer ban "does little, if anything, to further the objective of preventing corruption or the appearance of corruption," distinguishing the 2016 Eleventh Circuit decision in Alabama Democratic Conference v. Attorney General of Alabama, because "unlike Alabama, Missouri limits the contributions that a PAC can make to a candidate, so the anti-corruption interest cited in support of the Alabama law is diminished here."

The Eighth Circuit further found that the transfer ban was not closely drawn: "the risk of corruption from PAC- to-PAC transfers is modest at best, and other regulations like contribution limits and disclosure requirements act as prophylactic measures against quid pro quo corruption."

The Eighth Circuit affirmed the injunction against the Missouri constitutional provision, perhaps setting up a circuit conflict on the constitutionality of inter-PAC transfers.

The conservative majority on the Supreme Court today is similarly blinded [like the Court in the late 19th century] by a commitment to liberty in theory that ignores the reality of how Americans' lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice. Chief Justice John Roberts's June 2018 ruling to uphold President Donald Trump's travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.

In its unanimous judgment and opinions in Johar v. Union of India, the Supreme Court of India has declared that §377 of the Indian Penal Code, which prohibited "carnal intercourse against the order of nature" is unconstitutional. The Court overruled the 2013 judgment in Koushal v. NAZ Foundation which we discussed here.

The opinions of the Court, totaling just short of 500 pages, rest the decision on Articles

14 (equality)

15 (prohibition of discrimination, including sex)

19 (protection of speech and association) and

21 (protection of liberty against deprivation without due process)

of the Constitution of India. The opinions include extensive discussions of cases from other nations and jurisdictions finding that criminalization of same-sex relations is unconstitutional, including Lawrence v. Texas (2003) in the United States, overruling Bowers v. Hardwick (1986).

The opinion by Justice Indu Malhotra (image right) has an interesting passage regarding the opinion's timing:

History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.

The choice of "history" as being held accountable rather than the Court (and its previous opinion) may be deflective, but it is more of an acknowledgement that the United States Supreme Court gave in Lawrence (and which would have been arguably very appropriate).

In an extensive opinion in Whole Woman's Health v. Smith, District Judge David Alan Ezra ruled that Texas statute and regulations requiring internment (or cremation) for "embryonic and fetal tissue disposal" were unconstitutional. Judge Ezra's opinion occurred after a one-week bench trial in which the issue of cost of compliance was excluded.

Judge Ezra found that the Texas laws violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

On the equal protection issue, Judge Ezra found that the Texas laws' distinction between "pre-implantation and post-implantation embryos and the facilities that handle them" was not rationally related to the legitimate government interest in "respecting potential life." Thus, even under the rational basis test, the laws did not survive.

place substantial obstacles in the path of women seeking pregnancy-related medical care, particularly a previability abortion, while offering minimal benefits.

By endorsing one view of the status and respect to be accorded to embryonic and fetal tissue remains, the State imposes intrusive burdens upon personal decisions concerning procreation, especially upon the right of the woman to chose to have an abortion. And most importantly, the evidence in this case overwhelmingly demonstrated that if the challenged laws were to go into effect now, they would likely cause a near catastrophic failure of the health care system designed to serve women of childbearing age within the State of Texas.

This failure, Judge Ezra makes clear, is not simply for women seeking an abortion, but for all women seeking pregnancy care for complications.

Thus the court declared the laws and implementing regulations unconstitutional and enjoined their enforcement.

In its Report entitled The Civil Rights Record of Judge Brett Kavanaugh,the Legal Defense and Education Fund, Inc. of the NAACP supports its opposition to the confirmation of Judge Kavanaugh to the United States Supreme Court.

At just shy of 100 pages, the Report details concerns regarding Kavanaugh's record in areas such as executive power, criminal justice, qualified immunity, voting rights, campaign finance, reproductive rights, Second Amendment, and access to justice issues such as standing and pro se litigants. But importantly, the Report makes clear:

even before considering the opinions he has authored, the speeches he has given, and his full legal record, the following is true: Judge Kavanaugh’s nomination is tainted by the influence of reactionary groups in his selection by the President and by the President’s assertion that his nominees will target and overturn settled Supreme Court precedent. A woefully inadequate document production is thwarting the Senate’s “advice and consent” function and the ability of the American public to determine whether they want their Senators to support this nominee. And perhaps most significantly, the President’s credibility has been sapped by the ongoing investigations that raise questions about the legitimacy of his occupancy of the Oval Office and the vast powers it confers, such as the nomination of Supreme Court Justices. This highly unusual and critical context powerfully bears on our assessment of Judge Kavanaugh’s nomination.

Yet the report does delve deeply into Kavanaugh's decisions and reaches conclusions. For example, after a discussion of his decisions about campaign finance, the Report states:

Judge Kavanaugh’s campaign finance record provides four overarching themes. First, Judge Kavanaugh appears hostile to campaign finance regulations, seeming to be unwilling to uphold regulations beyond a narrow anti-corruption rationale. Second, Judge Kavanaugh’s BCRA interpretation [in Bluman v. Federal Election Committee] about the scope of issue-advocacy expenditures would allow foreign actors to engage in thinly veiled “issue advocacy” that deepens racial and religious division leading up to elections. Such a narrow interpretation of the BCRA prevents it from barring foreign actors who influence U.S. elections in concrete ways and increases the likelihood of the use of these racial appeals during the next federal election, an important tool of suppressing the votes of communities of color. Third, as evident in Emily’s List [v. Federal Election Commission], Judge Kavanaugh appears willing to reach out unnecessarily to decide issues in this context. Fourth, Judge Kavanaugh would likely revisit the soft-money limits on contributions to political parties as justice.

At several points, the Report suggests questions and specific focus for the Senate questioning. The hearings begin today.

The American Constitution Society is pleased to announce a call for papers for a workshop on public law to be held the afternoon of Thursday, January 3, 2019, at the 2019 AALS Annual Meeting in New Orleans. A committee composed to ACS's Board of Academic Advisors will select approximately 10 papers, and each selected author will have the opportunity to discuss his/her paper, as well as the paper of another author, in depth with two experienced scholars from the ACS network, which includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler.

Papers can be on any field related to public law, including but not limited to: constitutional law, administrative law, antidiscrimination law, criminal law, environmental law, family law, federal courts, financial regulation, public international law, society welfare law, and workplace law.

The deadline for submissions is 11:50 p.m. on October 19, 2018. Submissions should be works that will not be published as of January 1, 2019.

Submissions should be emailed in Microsoft Word or PDF format to juniorscholarsworkshop@acslaw.org. Please indicate in the subject line "Submission for ACS Junior Scholars Public Law Workshop" and include the author's name, school, and contact information in a cover email. The cover email should also identify the field(s) in which the paper falls.

Tenure-track and tenured faculty, or faculty with similar status, who have been full-time law teachers for 10 years or less as of December 31, 2018, are eligible to participate. Co-authored submissions are permissible, but each of the coauthors must be individually eligible to participate in the workshop.

Authors are limited to one submission each. Selections will be made by November 16, 2018. Authors must arrange their own travel to the AALS Annual Meeting.